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Thursday, 6 August 2015

The Portuguese collective rights society Sociedade Portuguesa de Autores CRL (SPA) sued a bar owner who played the radio through loudspeakers for the enjoyment of his patrons. In March 2015, the Tribunal da Relação de Coimbra (Appeals Court of Coimbra) considered it necessary to refer to the CJEU the question whether the bar owner’s action was a “communication to the public” in the sense of art. 3(1) Directive 2001/29 (the InfoSoc Directive), which reads

Right of communication to the public of works and right of making available to the public other subject-matter

Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

The CJEU reminded the Portuguese court that the “public” in the sense of art. 3(1) InfoSoc Directive was an indeterminate number of potential recipients (with reference to ITV Broadcasting e.a., C‑607/11, EU:C:2013:147, para 32). The customers of a bar, café or restaurant were a “public” in this sense.
Further, the “public” needed to be a “new public”, i.e., a public that was not considered by the right owner when authorizing the original communication to the public –- here the broadcast on radio (with reference to Football Association Premier League e.a., C‑403/08 et C‑429/08, EU:C:2011:631, para 197, Katpost). Here, the right owners took into account that individual persons and their families would listen to the radio broadcast, but not that the radio was played in the public sphere such as a bar.
Since the CJEU already held –- in Football Association Premier League –- that transmission in a pub of broadcasts containing protected works constitutes a ‘communication to the public’ within the meaning of the InfoSoc Directive, for which the authorisation of the author of the works is necessary, this result is hardly surprising. The CJEU did not think the question was particularly difficult to answer, either, given that it received the referral on 30 March 2015 and handed down the order on 14 July 2015, a mere 3.5 months later.

When I first read this post, I was rather surprised - reading that "the “public” needed to be a “new public”, i.e., a public that was not considered by the right owner when authorizing the original communication to the public" and so the bar owners were safe playing the radio. Perfectly sensible, of course, but it seemed rather contrary to how other decisions had gone...

... Then I realised i had mis-read it, and that contrary to what I had thought, the bar owners were indeed obliged to pay up. It still seems wrong though - if the radio broadcasters have paid to transmit the songs, why do other people have to pay to receive them?

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